Legal questions for families with sperm donors

Updated Oct 12 2015
Guest post by Dara Strickland
By: Pete BirkinshawCC BY 2.0
I've had a lot of questions from friends, colleagues, and clients in the past two months about the news-making case of an unfortunate sperm donor in Kansas. As an attorney who helps people build their families with good legal planning for assisted reproduction, cases like the one in Kansas are exactly what I want to help people avoid.

The background of the case is so similar to the way many of my lesbian couples have chosen to grow their families. Partners Jennifer Schreiner and Angela Bauer wanted to have a baby together, but chose not to use a sperm bank. Instead, they opted to find their donor, William Marotta, on Craigslist. While the story of his donation has a happy ending — a now-three year old daughter for Jennifer and Angela — the legal aftermath is anything but pleasant.

The mothers ended their relationship and Angela, the gestational mother, needed to apply for state welfare benefits. Kansas, like most states, takes a keen interest in recovering child support from parents to recoup state spending on benefits for a child. The parents in this case all believed they had made a valid written agreement before their daughter was born, stating that William would have no parental rights or responsibilities. The mothers want no child support, and are testifying in his defense.

Could what happened in Kansas happen to a family in your state? Three things to remember:

Kansas' law may be different from the law in your state

Under Kansas law, an insemination must be performed by a medical professional who then signs an acknowledgement of the procedure that's filed with the state to be considered an insemination that releases the donor from parental responsibilities. That portion of the law is a slightly more specific variation on the language of the laws many states have passed, but slight can make a big difference.

Under Missouri law and the laws of many other states, insemination must be done "under the supervision of a licensed physician" but there's no indication of what procedures that entails. Many physicians with patients who want to use donor semen but are otherwise reproductively normal counsel their clients through the process of selecting a donor, determining peak ovulation, and protecting collected semen for insemination at home rather than in the doctor's office. While a home insemination like this one clearly doesn't fit the Kansas requirements, it might fit the looser "supervision" requirements of other states.

Where there's ambiguity in a term in a state law, the meaning can be clarified by that state's courts, but only if a case that challenges the meaning of the term makes it through a local court to an appeal. That's happened in several states that have similar laws, with mixed results: some states have found that a sperm donor can be a legal father, some have found that he cannot. Some states don't have any cases at all that clarify the law because it's never come up — my state is one of them.

Your state may not have laws about sperm donation and parentage at all. My neighboring state of Iowa doesn't have any, though it does have legal same-sex marriage. If your state does have laws about sperm donation, they're going to be phrased in terms of a legally married husband and wife. Where does that leave single mothers or unmarried couples? The law is, again, unclear and varies from state to state based on whether or not cases have been appealed.

Nobody in Kansas cared anything about the baby's biological father until her mother needed assistance

The reason there aren't many cases about when a sperm donor is and is not considered a legal parent is that only a handful of cases asking to find paternity are filed out of the thousands of babies born with donor sperm. Out of that handful, even fewer are appealed from a lower-court decision. The only reason any state would have to intrude on the privacy of this family is to try to recover some of the tax money used to support the little girl from the parents responsible for her. Since Kansas law prevented her non-gestational mother from adopting her, the only other choice was her biological father.

Could what happened in Kansas happen in your state? Yes. Under the same circumstances as the Kansas case, a mother who knows the identity of her donor will run the risk of needing to identify him as her child's father if — but only if — she needed to apply for state benefits on behalf of her child. It's always possible that one of the parents will ask to determine paternity to establish child support, but the parents in the Kansas case, like most donor-families, had a clear understanding among the three of them that they would not do that. Only the intervention of the state forced the issue.

Good planning with the help of an attorney helps keep families safe

In every news report I've read about the Kansas case, I haven't seen any mention of an attorney getting involved before the state did — even in drafting the written agreements between the donor and the mothers. If this family had talked to an attorney with experience in family law, they may have chosen a different path to having a baby. Even if they had not done anything differently, they at least would have known the risk to the donor.

An attorney who practices family law in your area can not only educate you about the statutes and cases that make up the law in your state, but also help you have conversations about responsibility for costs, future relationships between your child and your donor, and how to protect your child's relationship with her non-biological or non-gestational parent. More importantly, your attorney can put those conversations into a legally-enforceable framework.

Making a precious kiddo is a hard enough process — go in armed with the right knowledge.

  1. What perfect timing! My wife and I are in the process of meeting with a lawyer and known-sperm donor now. We live in Washington and are legally married, but even so, our agreement is over 10 pages long, to protect our rights and his.

    We're looking towards inseminating this spring, but before any exchange of bodily fluids, this potential child will have been talked about, written about, and had hundreds of $$$ put into it- just to ensure that we're all legally protected.

    We're lucky too- in Washington, the laws are pretty comprehensive; both of our names will go on the birth certificate, the sperm donor has no legal rights to parentage, and the laws are specific to LGBT couples, however, we can never be too safe. I'll also still need to adopt the child once they're born, to protect us when we travel outside of our state. Oh the joys of being a second class citizen ­čÖé

    • Congratulations on growing your family! I'm so glad you live in a state where you have better built-in protections, it can make things a lot easier. I'm also glad you and your wife are able to sit down with your donor and a lawyer to make sure everyone's needs and expectations are covered.

      Can you imagine how different life in the United States would look if all families had to plan this much to have a baby?

    • i am getting ready to begin a second parent adoption in seattle washington. is there a firm you would recommend? our daughter is already born and we have a known donor

  2. Thanks for this interesting article. Every time I read something like this, I'm glad I live in a liberal state. I'm also glad we chose to to with a donor from a sperm bank. We have the downsides of not meeting him until our kids decide if they want to at age 18. The upside is that we went through second-parent adoptions with both of our kids at 2-3 mo old. This being Washington, the adoptions were very easy to obtain and now we have great photos for their baby books. We had the same lawyer and judge for both kids too.

  3. Don't do it in Ireland, anyway ­čÖé We have practically no legislation on assisted reproduction; it's mostly case law. A lesbian couple were taken to court by the man who donated sperm to them (a former friend), for access to the child http://www.pinknews.co.uk/2009/12/10/sperm-donor-wins-access-to-lesbian-couples-son/
    Another couple had to go to the High Court to get their children's genetic mother put on the birth certificate instead of their surrogate mother (who was the mother's sister). http://www.irishtimes.com/newspaper/breaking/2013/0305/breaking20.html

    • Ireland's family law is fascinating to me as an attorney in the US because it's so different from here. For one, Ireland's laws governing families are on a national level where in the US there's very, very little about laws that impact marriage and parentage that's the same in all states. That's one of the big problems for all couples here, queer or not – our laws were based on a society where movement from one state to another is rare, now it's very common to move during the course of a marriage, which can cause all kinds of problems because we don't have a uniform system.

      Ireland's also one of the few countries where divorce was outlawed, for any reason, for most of the 20th Century. There's still a requirement that the married couple have lived apart for 4 out of the preceding 5 years before requesting a divorce. Many states in the US don't even have a requirement that you live separately in order to get a divorce – at the worst part of the house value collapse here, I did several separations and divorces where the couple had no concrete plans to live separately for at least a year.

  4. Maybe it's cases like this that will show states the positive (financial) argument for same-sex marriage. If parents split up, the non-custodial parent pays child support, full stop. The other mother in this scenario should be paying child support, and if she were, the state would see no need to go after the sperm donor. (I'd say this mother also has a moral obligation even if she has no legal obligation. If she doesn't want the sperm donor on the hook, she is.) Making queer families legal would stop a lot of headaches when it comes to who is financially responsible for whom, custody cases, etc. That said, until the government catches up to the 21st (20th? 13th?) century, couples should protect themselves, their children, and their children's sperm donors. (Of course, THAT said, I am a member of a queer family, and we have no legal documents, didn't use any doctors, and basically have to trust that the donor will never ask for custody. But he's family, not a guy we found on Craigslist, so we've built that trust into our relationship.)

    • "The other mother in this scenario should be paying child support, and if she were, the state would see no need to go after the sperm donor."

      I'm sorry, this is just not true. The non-birth mother making child support payments in no way guarantees the gestational mother wouldn't need government assistance. My mom received child support, worked full time, and still needed help. In fact, in this case the non birth mother is contributing to her child (they actually have several children together, some from foster care, that they are co-parenting). The help they're seeking from the government is insurance for the child.

      • Basically, this is entirely a case of same-sex couples not being treated the same as hetero-couples, because in the eyes of Kansas law the non birth mother is just some nice woman helping out and not in any way a legal parent.

      • Very true, Haley. There were two moms responsible for this little girl not because Kansas would recognize them but because both moms were taking care of her needs financially – and it still didn't make any difference when they couldn't get her affordable health insurance.

        The thing that bothers me about this case most as an attorney (and as a person, which I also am sometimes!) is that everyone had the best of intentions, clear expectations, a written agreement…and it still didn't make any difference.

      • I am not sure where I said that she would not need government assistance, so no need to imply I did. I said if the government expects one party to pay child support, then if the ex-partner (and co-parent) pays, as she should, the sperm donor would not be seen as having any role.

        I see from another comment that the other mother IS indeed providing support, which is awesome, but the state doesn't recognize it as child support since she had no legal relationship. That's what is at issue here. The state wants child support paid so they can provide less (not no) assistance, but they aren't willing to call help from the other mother child support – thus they go after the donor. Would be much easier on the state to see the support for what it is, but no hope for that until we see equal rights.

    • You know, it may not be too late to get the trust that built your family into something legally recognizable. No contract can take the place of a good relationship – but I also never had a case that went to court where people didn't start off with enough level of trust to start a family in the first place.

      There used to not be any options for queer families in most states, now there are even in the least hospitable ones with a creative attorney.

  5. I am bio mom to a known donor conceived child. My (legally domestically partnered) wife's company will not insure myself or our child. I am self employed. I applied for state health care for myself and our child. They demanded our donor agreement, I provided it with our donor's name blacked out. Our laws are the same as KS. They denied me coverage for being "non-compliant" but cannot deny our child coverage.

    My beef with the legalities of this case? It should be heard in regards to changing reproductive tides and the validity of donor agreements PERIOD. Unfortunately, they are involving the best interest of the child, ordering evaluations, etc. What is in THIS donor conceived child's best interest is not necessarily in ALL donor conceived children's interest and this case will likely set a presedence.

    As for the case itself, Angie Bauer has stepped up and asked the state to make HER responsible for the child's child support and to take her finances into consideration when determining aid to the child (per my understanding.) She is TRYING to be the parent. She is TRYING to step up. She is TRYING to parent her child and the state is not allowing her to do so.

  6. A co-worker of my husband's (while he was training out of state) asked him to be a known sperm-donor for her girlfriend. I was all for it, until this case was pointed out to me. I would not want my husband to have any legal issues related to donating even though it would be done at a donation clinic, and also, I would not want the child to ever feel as if my husband was turning his back on him or her by not providing support. My husband was also feeling like he would not want to know there was a child out there that he was not taking part in raising, which is why he ultimately declined.

    • Barbara, I think you've touched on something that's really important to keep in mind in all known-donor situations, which is that even though the genetic material of only two people is involved, the relationships of more people are often involved, too. I encourage people who are putting together an agreement to sit down with not just bio-mom's partner, but bio-dad's as well. There are a lot of issues that aren't necessarily legal issues but in some ways are more important, like future relationships with siblings and what children will be told about where they came from.

      If the legal questions are your only hang-up, a quick consultation with an attorney will clear it up. Many states (mine included) have a specific exception for a finding of paternity when semen is delivered directly to a doctor, even for a known donor. Where you live may have a similar law.

  7. Timely article! I'm laying beside my hopefully pregnant wife in a hotel room, thinking about the amazing man who helped us get here.

    In our province it's different. My name goes on the birth certificate and I don't need to adopt my child-they are born into a legally sanctioned union. My role as second parent is more important than the biology behind 'fatherhood'

    It just strikes me as niave not to talk to a lawyer. We did just to be absolutely sure of what we could expect. No matter how progressive your state or country, laws can take a long time to catch up

    • Congratulations! I hope you get some good news, soon. I'm also glad you like in a place with more progressive laws that fit your family without having to go through a lot of legal process.

      Family law as we know it in the US is a collection of fairly new concepts (last 50 years or so) about what it means to be married and whether the court is concerned with children's well-being. Put that 50 years against thousands of years of traditions of a family as a system of labor, property ownership and inheritance (When was the last time you heard someone seriously use the term "illegitimate child"?) and we're moving fast. Measure it against the speed of advances in reproductive technology and actual families and we're crawling far behind.

Join the conversation

Your email address will not be published. Required fields are marked *

No-drama comment policy

Part of what makes the Offbeat Empire different is our commitment to civil, constructive commenting. Make sure you're familiar with our no-drama comment policy.